DECISION

Fair Work Act 2009
s.739—Dispute resolution

Ting Xi
v
Ironfish Pty Ltd
(C2020/4420)

DEPUTY PRESIDENT LAKE

BRISBANE, 18 NOVEMBER 2020

Application to deal with a dispute - jurisdictional objection – applicant not an employee at time of filing dispute – where right only crystallised after end of employment relationship – jurisdictional objection upheld – application dismissed.

Background

[1] An application was made by Ting Xi (the Applicant) under s 739 of the Fair Work Act 2009 (the Act) to deal with a dispute. The Applicant asserted that Ironfish Pty Ltd (the Respondent) owed commissions under her contract of employment.

[2] A notice of listing was issued on 17June 2020 and the Applicant provided her submissions on 18June 2020. On 30June 2020, the Respondent made a jurisdictional objection to the dispute.

[3] On 3 July 2020, I held a conference where the jurisdictional objection was asserted by the Respondent. I then directed the Respondent to provide a written submission on the objection by 10 July 2020.

[4] The parties agreed to have the matter of the jurisdictional objection determined on the papers.

[5] The Applicant was employed as a Property Strategist on 17 April 2015. Prior to filing this dispute, the Applicant had resigned from her employment. The Applicant resigned on 12 December 2016. Her role was to principally sell off the plan property. As part of her remuneration, when a property was sold the Applicant was paid a bonus. This was structured as 50% due immediately and the remaining 50% being paid upon settlement.

[6] The Applicant received the first instalment which was included in her December 2015 payslip. The second instalment, which was due upon settlement, was delayed due to the project having being finalised much later than planned: the original completion time was mid-2017, however did not occur until February 2020.

[7] The second instalment fell due a considerable period after the Applicant left her employment. The Applicant has been paid a number of trailing commissions for other sales post-employment, however for a particular reason not revealed to either the Applicant, nor the Commission, the Respondent has not paid the second instalment.

[8] For the purpose of this Decision, the question is a jurisdictional one: where a right to an entitlement only crystallises post-employment, does the Commission have jurisdiction to hear an application under s 739?

Relevant Law

[9] Sections 738 and 739 provide the scope of Part 6-2, Division 2 of the Act, which deals with disputes before the Commission. The sections are extracted below:

738 Application of this Division

This Division applies if:

a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

c) a contract of employment or other written agreement includes a term…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6176
Decision Date: 18 NOVEMBER 2020

CaseChat Overview and Summary

The case of Ting Xi v Ironfish Pty Ltd involved a jurisdictional challenge to a Fair Work Commission application for the resolution of a workplace dispute. The applicant, Ting Xi, sought to file a dispute concerning unfair dismissal against Ironfish Pty Ltd, the respondent. The crux of the dispute was whether the Fair Work Commission had jurisdiction to hear the matter, given that the applicant was not an employee of the respondent at the time the dispute was lodged. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Fair Work Commission had the authority to entertain the application, considering that the applicant’s right to lodge the dispute crystallised only after the termination of her employment. The court had to determine if the applicant's right accrued while she was still an employee or if it only arose post-employment. This distinction was crucial because the Fair Work Act provides that an employee must file a dispute within 21 days of the occurrence of the matter giving rise to the dispute. The court examined whether the statutory provisions were satisfied in this scenario.

The court ruled that the applicant's right to lodge the dispute did not accrue until after her employment had ended. Consequently, the right did not exist within the 21-day window prescribed by the Fair Work Act. The court found that since the applicant was not an employee at the time she filed the dispute, the Fair Work Commission lacked jurisdiction. The jurisdictional objection was upheld, and the application was dismissed. The court determined that the applicant’s rights were contingent on her employment status, and since the employment had ceased, the right to lodge a dispute could not be exercised within the statutory timeframe.

The final orders of the court were that the application for the resolution of the workplace dispute was dismissed for lack of jurisdiction. The court clarified that the applicant was required to meet the statutory conditions for lodging the dispute, which she failed to do because her right to do so only arose post-employment. This decision underscores the importance of timely compliance with statutory requirements in employment dispute resolutions.

Orders